SZHXR v Minister for Immigration
[2006] FMCA 1743
•20 December 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZHXR v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 1743 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision. Status – refugee status – refusal. Visa – protection visa. |
| Migration Act 1958, ss.91X, 422B, 424A |
| Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1996-7) 190 CLR 225 Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572 Minister for Immigration & Multicultural & Indigenous Affairs v SZFDE [2006] FCAFC 142 MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 NABE v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 263 SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 |
| Applicant: | SZHXR |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3774 of 2005 |
| Judgment of: | Cameron FM |
| Hearing date: | 1 November 2006 |
| Date of Last Submission: | 1 November 2006 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2006 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondents: | Mr J. A. C. Potts |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3774 of 2005
| SZHXR |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
By application dated 21 December 2005, the applicant seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 22 November 2005 which affirmed an earlier decision of the delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) dated 18 July 2005 refusing the applicant’s application for a protection visa.
Section 91X Migration Act 1958 (Cth) provides that the Court must not publish the applicant’s name.
Background Facts
The Tribunal described the applicant as follows:
The applicant claims he is a citizen of the People’s Republic of China (China) and was born and educated in Fujian Province. He is 47 years of age, speaks Mandarin Chinese and is of Han ethnicity. He described his occupation and gave a history of employment as “farmer”. The applicant is married and his wife and two children are living in China. Prior to his departure from China he lived at an address in Wuxing village, Gangtou Town, Fuqing City, Fujian Province.
The applicant arrived in Australia on 15 May 2005 travelling on a Chinese passport and entered Australia on a short stay sponsored visit visa issued on 5 May 2005. (Court Book pages 68 to 69).
The applicant claims to have been persecuted in China and to fear further persecution by reason of having breached China’s one child policy.
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 to 8 of the Tribunal’s decision (CB 68-72). Relevantly, and in summary, they are:
a)the applicant and his wife had a son in 1984 and a daughter in 1986. After his second child was born in 1986 the applicant was fined 3000 Yuan and his daughter was not registered and not allowed to go to school;
b)when, in about 2000, the applicant’s wife became pregnant for a third time she was arrested by county officials, taken into custody and forced to have an abortion. Following this, the applicant’s land was confiscated, and a request for its return was refused;
c)because the applicant had lost his land, he was working in a job which did not pay enough to support his family and “there was no hope”.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant in the evidence before it, the Tribunal found it was not satisfied that the applicant is a person to whom Australia has protection obligations. The Tribunal’s decision was based on the following findings and reasons which are paraphrased in the first respondent’s outline of submissions as follows:
7.The Tribunal accepted that the applicant and his wife had two children, who were then aged about 22 and 20 years of age. The Tribunal accepted that the applicant’s wife had fallen pregnant and had had an abortion in March 2000. The Tribunal considered it unlikely that the applicant’s wife was arrested and forced to have an abortion, however for the purposes of its decision, it accepted that a forced abortion took place in March 2000. Whilst the Tribunal accepted that a forced abortion was a breach of the human rights of the applicant and his wife, it did not accept that it amounted to persecution for a Convention based reason. First it was clear that the Chinese government did not and had not for many years condoned forced abortion and sterilisation as part of its population policy, and there was information available to indicate that the Government had taken action against officials who had exceeded their authority in those isolated cases in which such actions had taken place. Secondly, the population policy which encouraged abortion and sterilisation was not applied on a discriminatory or selective basis. It was generally accepted that the protection of the Convention would not be attracted where the harm feared amounted to an indiscriminate or non-selective infringement of human rights.
8.The Tribunal did not accept that the applicant was fined, or that his land was confiscated by officials because he and his wife were accused of removing a contraceptive device. First, the applicant had not provided any independent evidence that his property was confiscated for the reasons claimed. Secondly, the claim was at odds with country information which indicated that Fujian’s Provincial Regulations on population and family planning did not impose compulsory sterilisation on couples with a history of out of quota births, but rather observed that guidance on birth control methods and family planning should be available to all to prevent out of quota births.
9.Whilst the Tribunal accepted that the applicant and his wife may have come under pressure and disapproval from local officials as a result of the removal or loss of the wife’s contraceptive device, as country information indicated that forced sterilisation was clearly against Government policy, therefore the removal of a contraceptive device was neither a criminal offence, nor did the Tribunal accept that it was an act which would be administratively punished by fines or confiscation of land. The Tribunal also noted that the applicant did not take any action in the courts or under any Chinese legislation to have his land returned, or compensation granted. His evidence surrounding the circumstances of the confiscation were also limited in detail. … The Tribunal did not accept that the applicant’s land was confiscated in 2000 for breach of the family planning policy. It did not consider the evidence given by the applicant on the confiscation of his property to be truthful.
10.The Tribunal referred to the fact that the applicant had claimed that since he had lost his land in 2000 he had been working, but his income had been insufficient to maintain his family. He had noted that he had not expressed a fear of persecution from the Chinese authorities or any other person if he returned to China, but he expressed a fear of poor economic future if he returned as a result of the loss of his land. The Tribunal considered that the applicant had travelled to Australia at the suggestion of his sister and he perceived that he had greater economic opportunities in Australia than China. It found that he had applied for a protection visa for the purpose of obtaining a migration outcome for economic reasons, rather than for the purposes of obtaining Convention based protection. On the evidence before it, the Tribunal did not accept that he had a genuine fear of persecution if he returned to China then or in the foreseeable future. It had also considered and found on the evidence before it there was no objective basis for fear of persecution if he returned to China, for any Convention based reason, or any reason at all.
11.The Tribunal noted that in his written claims the applicant had claimed to have taken legal action against the Government and that this action had resulted in further punishment to his family by Government authorities. However, at the hearing he had stated that he did not take any legal action against the Government. The Tribunal considered that he had abandoned the claim that he had taken legal steps against the Government officials and suffered harm as a result (footnotes omitted).
In essence, the Tribunal found;
a)there was no real subjective fear held by the applicant about what would happen to him if he returned to China;
b)there was no objective basis for a fear of persecution were he to return to China;
c)as to the matters which the applicant said had occurred in the past and were of a persecutory nature, what the applicant said had happened to him and his family was not condoned by the Chinese government; and
d)in any event such persecution was not harm directed to the applicant for a Convention reason.
Proceedings in this Court
The grounds of the application can be summarised as follows;
a)The applicant was denied procedural fairness because
i)although the Tribunal accepted that a forced abortion is a breach of the human rights of the applicant and his wife it failed to accept that this amounted to persecution for a Convention based reason whereby the applicant is persecuted for his membership of a particular social group;
ii)the Tribunal did not accept that the applicant had been fined and his land confiscated;
iii)the Tribunal lacked China country information by saying that the applicant did not take any action in the courts to have his land returned or compensation granted and the Chinese courts would not help anyone like the applicant.
b)In breach of s.359A [sic] of the Act the Tribunal failed to invite the applicant to comment on independent country information to which the Tribunal had regard when affirming the decision of the Minister’s delegate.
Dealing which each of these claims in turn:
Denial of procedural fairness
Procedural fairness generally
These proceedings are ones to which s.422B of the Act applies. That section provides that Division 4 of Part 7 of the Act is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters with which the Division deals.
In Minister for Immigration & Multicultural Affairs v Lay Lat [2006] FCAFC 61 the Full Court of the Federal Court said in relation to s.51A at [66-68]
What was intended was that Subdivision AB provide comprehensive procedural codes which contain detailed provisions for procedural fairness but which exclude the common law natural justice hearing rule.
Other aspects of the common law of natural justice, such as the bias rule are not excluded; see VXDC at [27].
The intention to exclude the common law rules in the present case is especially plain when s.51A(1) is read with s.57(3). The Legislature could hardly have intended to provide the full panoply of common law natural justice to visa applicants who are required to be outside Australia when the visa is granted, while conferring a more limited form of statutory protection upon onshore applicants.
An identically constituted Full Court expressly applied the reasoning of Lay Lat to the interpretation of s.422B in SZCIJ v Minister for Immigration & Multicultural Affairs [2006] FCAFC 62 at [8]. See also the comments of Allsop J in Minister for Immigration & Multicultural & Indigenous Affairs v SZFDE [2006] FCAFC 142 at [138].
Notwithstanding the particulars appearing in the application ostensibly in relation to this ground, and which will be considered below, the applicant has not identified in what way the Tribunal denied him procedural fairness. Nor has he demonstrated that he was denied procedural fairness.
Persecution by reason of membership of a particular social group (particular (a))
Particular (a) of the breach of procedural fairness ground refers to the applicant being persecuted by reason of being a member of a particular social group, which appears to be the social group of Chinese parents in breach of China’s one child policy. On that basis the decision of the High Court in Applicant A & Anor v Minister for Immigration & Ethnic Affairs & Anor (1996-7) 190 CLR 225 is determinative of this issue. The majority, Dawson, McHugh and Gummow JJ expressed the relevant conclusion differently, while each arrived at a position which shows that the applicant’s claim to be a member of a persecuted social group must fail:
A particular social group, therefore, is a collection of persons who share a certain characteristic or element which unites them and enables them to be set apart from society at large. That is to say, not only must such persons exhibit some common element; the element must unite them, making those who share it a cognisable group within their society…
However, one important limitation which is, I think, obvious is that the characteristic or element which unites the group cannot be a common fear of persecution (per Dawson J at 241-242)
and Gummow J said at 285:
However, numerous individuals with similar characteristics or aspirations in my view do not comprise a particular social group of which they are members. I agree with the statement in Ram[1]:
‘There must be a common unifying element binding the members together before there is a social group of that kind. When a member of the social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of the persecutors, so that it is a fitting use of language to say that it is ‘for reasons of’ his membership of that group.’
[1] Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 at 569
Of the particular facts of that case, which are relevant to these proceedings, McHugh J said at 270:
There is simply a disparate collection of couples throughout China who want to have more than one child contrary to the one child policy. Some may wish to have a child as soon as possible; some in the near future, and others in the distant future. There is no social attribute or characteristic linking the couples, nothing that would allow them to be perceived as a particular social group for Convention purposes. To classify couples as “a particular social group” it is to create an artificial construct that bears no resemblance to a social group as that term is ordinarily understood. Indeed it is hard to see how such couples are even a group for demographic purposes. (original emphasis retained)
Consequently, the applicant has not demonstrated that he is a member of a social group for Convention purposes.
Seizure of land (particulars (b) and (c))
As to the claim that the applicant’s property was seized, the Tribunal notes in its findings and reasons (CB 76) that the applicant had not provided any independent evidence that his property was confiscated for the reasons claimed by him. Moreover, the Tribunal found this claim to be at odds with the country information which indicated that Fujian’s provincial regulations on population and family planning would not support a conclusion that land confiscation would be the result had the applicant’s wife removed or lost her contraceptive device.
The applicant does not dispute that he did not seek legal redress for the alleged seizure of his land. The claim made by the applicant on this point suggests that the Tribunal should have inferred that he would have derived no benefit or relief from having pursued the matter through the Chinese courts. However, the Tribunal did not accept that the applicant’s land was confiscated for a breach of the family planning policy and did not consider the applicant to have given truthful evidence concerning the confiscation of property (CB 77).
Each of the complaints raised by the applicant in relation to the seizure of land issue relate to the Tribunal’s findings of fact. The Tribunal’s findings on this issue were open to it on the evidence and even if they were erroneous conclusions, it is not a jurisdictional error to make a wrong finding of fact: MZWBW vMinister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [28]. See also NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No. 2) [2004] FCAFC 263.
Breach of s.359A – not giving the applicant information
This section of the Act relates to proceedings before the Migration Review Tribunal. The claim which the applicant seeks to make should, rather, have referred to s.424A which relates to proceedings before the Refugee Review Tribunal.
Proceeding on the basis that a claim is made relying on s.424A, it nevertheless fails. The independent country information referred to by the applicant as being material on which the Tribunal should have invited the applicant’s comments, falls within the exception to s.424A found in s.424A(3)(a). As a result, the information does not need to be supplied to him by the Tribunal, as the applicant asserts: Minister for Immigration & Multicultural & Indigenous Affairs v NAMW & Ors (2004) 140 FCR 572.
In her submissions and at the hearing the Minister drew attention to the following comment by the Tribunal:
The applicant’s claims at hearing differed in some respects from the claims he made in his written statement (CB 78).
However, it should be noted that the Tribunal went on to say at the end of the relevant paragraph:
My earlier findings on credibility do not arise from the fact that the applicant has abandoned this claim, but are for the reasons set out earlier in this decision (CB 78)
and for that reason the passage of the Tribunal’s findings and reasons does not raise any s.424A issue.
Conclusion
For the above reasons, the applicant has not demonstrated that the Tribunal has committed a reviewable error and consequently the application will be dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate: Parisra Thongsiri
Date: 20 December 2006
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